Body Corporate and Community Management and Other Legislation Amendment Bill 2023

On 14 November 2023, the Queensland government passed the Body Corporate and Community Management and Other Legislation Amendment Bill 2023 (the Bill).

The Bill seeks to act on the Queensland Government’s 2022 Housing Summit (read more here). On the 26 October 2023, the Bill was tabled for its second reading in the Senate. The Committee made a number of other relevant recommendations on the passing of this Bill however, ultimately resolved not to pass the Bill.

On 14 November the Bill was passed. While the Bill looks to amend a number of pieces of legislation this article focuses on the amendments to the Body Corporate and Community Management Act Qld 1997 (the BCCM Act).

Scheme Termination
The most topical amendment to the BCCM Act is the inclusion of an additional method to terminate a community titles scheme. With the Bill passing, a Body Corporate can now terminate a scheme with a 75% vote of the owners but only on the basis that economic reasons exist.

Broadly speaking the process to be followed is as follows:

1. The body corporate commissions a pre-termination plan;
2. Owners vote at general meeting, via majority resolution, whether they agree that economic reasons exist;
3. If the owners agree that economic reasons exist then the body corporate pass a further resolution which enacts a termination plan.

The termination plan includes important but practical information for owners, specifically it must provide a minimum compensation for owners.

The termination plan, or as the Bill describes, the termination resolution must be resolved by a 75% or more vote of the owners.

It is also very important to note that there are two dispute avenues built into the Bill which provides aggrieved owners or parties the ability to challenge the proposed termination. The first avenue is enlivened after the first resolution going to whether economic reasons exist and takes the form of specialist adjudication. The second avenue is enlivened after the second resolution going to whether the owners approve the termination plan and takes the form of an application to the Court.

The process, and rightfully so, includes a number of steps and very strict timeframes. Accordingly, it is crucial that any body corporate wishing to explore this new termination method should first obtain advice on the process, steps, timeframes, and likely costs before embarking on same.

By-Laws and Governance

1. Towing: The Bill includes an amendment to the BCCM Act which allows a body corporate to tow a vehicle without following the by-law enforcement process as long as the body corporate is relying on other law to lawfully tow. Put another way, if there is a law outside of the BCCM Act which would make the towing of a vehicle lawful then the body corporate can rely on that law and not be forced to follow the by-law contravention process.
2. Nuisance/Hazard – Smoking: The Bill includes an amendment section 167 of the Act (which requires the owner or occupier of a Lot to refrain from using a Lot or Common Property in a manner which will cause a nuisance and/ or hazard) to include an express acknowledgement that an occupier will be in contravention of section 167 if the occupier, or an occupier’s invitee uses the Lot or Common Property to regularly smoke.
3. Layered Arrangements – Access to Records: The Bill includes an amendment to the BCCM Act which allows a subsidiary owner to access, directly rather than via the subsidiary body corporate, the principal body corporate records.
4. By-Laws – Smoking: The Bill includes an amendment to the BCCM Act which allows a Body Corporate to enact a by-law which prohibits smoking in outdoor areas whether that be on the lot or common property.
5. By-Laws – Pets: The Bill includes an amendment to the BCCM Act which acknowledges that a body corporate cannot have a by-law which prohibits animals in a scheme, or restricts the number, size or type of animal to be kept on a lot.
6. By- Laws – Layered Arrangements: The Bill includes an amendment to the BCCM Act which practically allows a principal body corporate to enforce its by-laws directly against a subsidiary occupier.

When Does the New Legislation Take Affect?
The amendments to the BCCM Act do not have a commencement date yet. However, the amendments to other legislation, more relevantly to the Land Sales Act 1984 will take effect from assent.
Our office will keep you informed of updates received in terms of the commencement date for the new amendments to the BCCM Act.